Matrimonial Agreements

A matrimonial agreement is a contract between spouses. The exact terms of the agreement will vary with the needs and circumstances of the parties. However, there are some general rules for these agreements. A matrimonial agreement must be in writing. It must be signed and acknowledged in the same manner as a deed. Any agreement that does not comply with these basic rules will not be enforceable. Signatures alone are not sufficient. Notarized signatures also are not sufficient. A matrimonial agreement also must comply with several other provisions of the Domestic Relations Law. These include the distribution of property, child support, spousal maintenance (”alimony”), and health insurance. Failing to properly address these issues can cause problems with enforcement or compliance. Therefore, it is important that any matrimonial agreement be well-written.

More than 90 percent of divorce matters are resolved through a negotiated agreement. This includes some matters that have involved extensive litigation to work through various issues. Therefore, being able to write a clear and comprehensive matrimonial agreement is an essential skill for matrimonial attorneys. It requires not only clear writing. It requires comprehensive knowledge of matrimonial law.

I have written hundreds of matrimonial agreements over the past 30 years. They have varied from simple agreements, for people with no children and little or no marital property, to complex agreements, for clients with family businesses, multiple pieces of real property, various secured and unsecured debts, separate property issues as well as other issues that required careful and thorough writing. From my litigation experience, I know what it takes to write an agreement that can withstand a judicial challenge as well as one that can be enforced. Although several of the agreements that I have written have been challenged in court, none have been vacated or invalidated.

Every divorce is different. However, I often start the divorce process by preparing a rough draft of a matrimonial agreement. This allows me and my client to identify all the issues presented, all the assets and all the liabilities, and identify points of controversy or evidentiary problems. A draft agreement is an outline that gives us a clear and comprehensive starting point for negotiation. It also gives us guidance for litigation if that should be necessary.

The process of drafting a matrimonial agreement is straightforward. Once the client has provided me with all of the necessary information and documentation, I will prepare the first draft of the agreement. This usually takes about a week depending on my schedule. The draft will be emailed to the client with various notes in the draft. Some explain for the client some of the more complex parts of the agreement. Some are requests for additional information or documentation others may be a request for clarification. Some notes explain to the client the choices and options that they have and which can be added to the draft.

After the client has had a chance to review the draft, I will meet with the client to review it. This can be done by telephone. However, I prefer in person meetings. I believe that these are better for my clients than a phone call. In person meetings also are far more efficient than exchanging emails. In the meeting with the client, we will go over my notes and questions in the draft as well as the client’s questions. After this I will revise and edit the draft and then email it to the client.

Only once the client is satisfied with the draft agreement, I will send it to the other party or the attorney for the other party. This then will be followed by negotiations and sometimes litigation, if necessary.